1. Prepared for the National Association of Government Employees, NAGE, SEIU November 17, 2011 NOTES FROM THE FLRA WASHINGTON REGIONAL OFFICE

2. 5 PROBLEM AREAS IN ULP CASES SUPPORTING EVIDENCE (PREPARE IT BEFORE FILING YOUR CHARGE) SUPPORTING EVIDENCE (PREPARE IT BEFORE FILING YOUR CHARGE) DECIDING WHETHER TO FILE ULP OR GRIEVANCE DECIDING WHETHER TO FILE ULP OR GRIEVANCE RESPONDING TO AGENCY’S DENIAL OF OFFICIAL TIME (STATUTORY OFFICIAL TIME VS. CONTRACT/CBA OFFICIAL TIME) RESPONDING TO AGENCY’S DENIAL OF OFFICIAL TIME (STATUTORY OFFICIAL TIME VS. CONTRACT/CBA OFFICIAL TIME) GETTING THE DATA THE UNION NEEDS – ESTABLISHING PARTICULARIZED NEED GETTING THE DATA THE UNION NEEDS – ESTABLISHING PARTICULARIZED NEED KNOWING WHEN AND WHAT WE CAN BARGAIN: 1) THE RIGHT TO BARGAIN; 2) SUBJECTS OF BARGAINING; 3) THINGS TO BE AWARE OF IN BARGAINING; 4) COVERED BY; 5) BYPASS KNOWING WHEN AND WHAT WE CAN BARGAIN: 1) THE RIGHT TO BARGAIN; 2) SUBJECTS OF BARGAINING; 3) THINGS TO BE AWARE OF IN BARGAINING; 4) COVERED BY; 5) BYPASS 2

3. SUPPORTING EVIDENCE + preparing to file your charge Know the facts Know the facts Know what evidence you have for the violation(s) Know what evidence you have for the violation(s) Know the witnesses and how they can be reached Know the witnesses and how they can be reached Confirm that your witnesses will support the allegations Confirm that your witnesses will support the allegations Understand your “interests” rather than your “position” Understand your “interests” rather than your “position” Think about what you really need, and make some attempt at informal resolution Think about what you really need, and make some attempt at informal resolution 3

4. Section 7116(d) – no 2 bites at the apple Section 7116(d) – no 2 bites at the apple Repudiation – Dep’t of the Air Force, Warner Boins Air Logistics Ctr, 52 FLRA 225 (1996). Authority considers 1) nature and scope of breach of the agreement, i.e. was it clear and patent? And 2) does the provision go to the heart of the parties’ agreement? Repudiation – Dep’t of the Air Force, Warner Boins Air Logistics Ctr, 52 FLRA 225 (1996). Authority considers 1) nature and scope of breach of the agreement, i.e. was it clear and patent? And 2) does the provision go to the heart of the parties’ agreement? Contract interpretation – Authority generally does not interpret CBAs. BUT, see IRS, 47 FLRA 1091 (1993) – if a party defends against a ULP by stating a specific CBA provision allowed its conduct, we will interpret the CBA. Contract interpretation – Authority generally does not interpret CBAs. BUT, see IRS, 47 FLRA 1091 (1993) – if a party defends against a ULP by stating a specific CBA provision allowed its conduct, we will interpret the CBA. 4 ULP OR GRIEVANCE: CHOOSING THE RIGHT FORUM

5. OFFICIAL TIME PROBLEMS Section 7131 of the Statute says it all Section 7131 of the Statute says it all Section 7131(a) – time representing the Union when you are negotiating a contract Section 7131(a) – time representing the Union when you are negotiating a contract Section 7131(b) – no official time for internal union activities Section 7131(b) – no official time for internal union activities Section 7131(c) – time to participate in FLRA proceedings Section 7131(c) – time to participate in FLRA proceedings Section 7131(d) – all other official time. Agencies and unions may negotiate official time in addition to what is described in 7131(a) and (c); official time the parties negotiate must be “reasonable Section 7131(d) – all other official time. Agencies and unions may negotiate official time in addition to what is described in 7131(a) and (c); official time the parties negotiate must be “reasonable 5

6. OFFICIAL TIME PROBLEMS, CONT’D In other words, all official time issues other than (a) and (c) are covered by the parties’ agreement. In other words, all official time issues other than (a) and (c) are covered by the parties’ agreement. For a denial of OT to be a ULP, the dispute must fall under (a) or (c) or be analyzed as Repudiation, as discussed above. Otherwise, a dispute about OT must be brought as a grievance For a denial of OT to be a ULP, the dispute must fall under (a) or (c) or be analyzed as Repudiation, as discussed above. Otherwise, a dispute about OT must be brought as a grievance 6

7. Section 7114(b)(4) requires agency to furnish data, to extent not prohibited by law, that is 1) normally maintained; 2) reasonably available; 3) necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining; and 4) not guidance, advice, counsel or training for mgmt officials or SVs relating to bargaining. Section 7114(b)(4) requires agency to furnish data, to extent not prohibited by law, that is 1) normally maintained; 2) reasonably available; 3) necessary for full and proper discussion, understanding and negotiation of subjects within the scope of bargaining; and 4) not guidance, advice, counsel or training for mgmt officials or SVs relating to bargaining. IRS, Washington and IRS, Kansas City Serv. Ctr., 50 FLRA 661 (1995) – To show data is necessary, U must establish “particularized need” i.e., Why it needs the data; How it will use it; How the use of the data relates to the U’s representational duty IRS, Washington and IRS, Kansas City Serv. Ctr., 50 FLRA 661 (1995) – To show data is necessary, U must establish “particularized need” i.e., Why it needs the data; How it will use it; How the use of the data relates to the U’s representational duty 7 How do we get the data we need from the Agency?

8. It’s not enough to show the data would be useful. Union must show data is required in order for U to represent BUEs. It’s not enough to show the data would be useful. Union must show data is required in order for U to represent BUEs. Request must be specific enough for agency to decide whether data is necessary. Request must be specific enough for agency to decide whether data is necessary. Union must justify the scope of its request, i.e. time periods, geographic locations, departments, etc. Union must justify the scope of its request, i.e. time periods, geographic locations, departments, etc. Be conscious of privacy concerns. Include an offer of redaction Be conscious of privacy concerns. Include an offer of redaction Consult the new OGC Guidance on info requests issued 10/31/2011, at www.flra.gov. Consult the new OGC Guidance on info requests issued 10/31/2011, at www.flra.gov. 8 How do we get the data we need from the Agency? Cont’d

9. WHEN AND WHAT CAN WE BARGAIN? The duty to bargain arises in 3 contexts: 1) term negotiations; 2) mid-term negotiations; 3) changes in conditions of employment (unless de minimis, “covered by,” or union waiver. See, Dep’t of Labor, Dallas, TX, 65 FLRA 677 (2011) The duty to bargain arises in 3 contexts: 1) term negotiations; 2) mid-term negotiations; 3) changes in conditions of employment (unless de minimis, “covered by,” or union waiver. See, Dep’t of Labor, Dallas, TX, 65 FLRA 677 (2011) Subjects of bargaining: matters related to working conditions, subject to certain exceptions Subjects of bargaining: matters related to working conditions, subject to certain exceptions Management rights, 7106(a) Management rights, 7106(a) Permissive subjects, 7106(b)(1) – at the election of the agency Permissive subjects, 7106(b)(1) – at the election of the agency Bargaining the substance, not just I&I – if not 7106(a) or (b) or otherwise prohibited, fully negotiable (Ex.: assignmt of pkg spaces, certain leave procedures, sign in/out sheets, ee awards programs, protective overalls) Bargaining the substance, not just I&I – if not 7106(a) or (b) or otherwise prohibited, fully negotiable (Ex.: assignmt of pkg spaces, certain leave procedures, sign in/out sheets, ee awards programs, protective overalls) Impact and implementation – next slide Impact and implementation – next slide 9

10. WHEN AND WHAT CAN WE BARGAIN, CONT’D Impact and Implementation (section 7106(b)(2) and (3)) – Even if mgmt makes a decision to exercise a mgmt right, or mgmt makes a decision on a permissive subject that it has chosen not to bargain with the Union, there is still a duty to notify the Union and, upon request, bargain over the adverse impact of the decision and the procedures for implementing the change. DHS, Customs and Border Prot., El Paso, TX, 65 FLRA 422 (2011). Even if mgmt makes a decision to exercise a mgmt right, or mgmt makes a decision on a permissive subject that it has chosen not to bargain with the Union, there is still a duty to notify the Union and, upon request, bargain over the adverse impact of the decision and the procedures for implementing the change. DHS, Customs and Border Prot., El Paso, TX, 65 FLRA 422 (2011). 10

11. THINGS TO BE AWARE OF IN BARGAINING When a subject concerns a mgmt right, mgmt may inform the union that mgmt has decided to bargain only over I&I (impact and implementation). When a subject concerns a mgmt right, mgmt may inform the union that mgmt has decided to bargain only over I&I (impact and implementation). I&I proposals must be narrowly tailored to address the adverse impact and can’t excessively interfere with the exercise of a mgmt right. I&I proposals must be narrowly tailored to address the adverse impact and can’t excessively interfere with the exercise of a mgmt right. If the subject concerns a negotiable matter, mgmt may inform the union that “we would like to …” or “we plan to…,” and the U can request bargaining, including proposals that mgmt not make the change, or make it in a different way. If the subject concerns a negotiable matter, mgmt may inform the union that “we would like to …” or “we plan to…,” and the U can request bargaining, including proposals that mgmt not make the change, or make it in a different way. If the subject concerns a permissive subject, either party can withdraw from bargaining short of reaching an agreement. (Agreements reached are binding, though.) If the subject concerns a permissive subject, either party can withdraw from bargaining short of reaching an agreement. (Agreements reached are binding, though.) 11

12. THINGS TO BE AWARE OF IN BARGAINING, CONT’D When a CBA expires, either party can elect not to be bound by its permissive terms. When a CBA expires, either party can elect not to be bound by its permissive terms. Neither party may insist to impasse on a permissive subject. Neither party may insist to impasse on a permissive subject. Ground rules for bargaining is a mandatory subject of bargaining. (That is, ground rules are not “permissive;” a party cannot “elect” not to negotiate ground rules.) Ground rules for bargaining is a mandatory subject of bargaining. (That is, ground rules are not “permissive;” a party cannot “elect” not to negotiate ground rules.) Note the difference between whether there is a duty to bargain over a subject, and whether or not a specific Union proposal is negotiable. The difference dictates whether you should pursue a ULP or a negotiability appeal. Note the difference between whether there is a duty to bargain over a subject, and whether or not a specific Union proposal is negotiable. The difference dictates whether you should pursue a ULP or a negotiability appeal. 12

13. THINGS TO BE AWARE OF IN BARGAINING, CONT’D – “COVERED BY” THINGS TO BE AWARE OF IN BARGAINING, CONT’D – “COVERED BY” A party is not required to bargain over matters contained in or covered by an existing agreement. A party is not required to bargain over matters contained in or covered by an existing agreement. The test for whether a matter is covered by an existing agreement has 2 prongs: Is the subject “expressly contained” in the agreement; or is the matter “inseparably bound up with and plainly an aspect of” something in the agreement?” SSA, Balt., 47 FLRA 1004 (1993). The test for whether a matter is covered by an existing agreement has 2 prongs: Is the subject “expressly contained” in the agreement; or is the matter “inseparably bound up with and plainly an aspect of” something in the agreement?” SSA, Balt., 47 FLRA 1004 (1993). This test applies both changes in conditions of employment and to the negotiability of specific U proposals This test applies both changes in conditions of employment and to the negotiability of specific U proposals 13

14. THINGS TO BE AWARE OF IN BARGAINING COVERED BY, CONT’D 2 new decisions on “covered by.” 2 new decisions on “covered by.” NFFE, Fed. District 1, Local 1998, IAMAW and Dep’t of State, Passport Svcs, Wash., DC 66 FLRA No. 26 (Sept. 20, 2011) – on negotiability appeal, holding that U proposals re office space were not “covered by” because matter was not “expressly contained in the CBA and, as to the second prong of “covered by,” no barg history or other evidence that matter was inseparably bound up with matters expressly covered in CBA. NFFE, Fed. District 1, Local 1998, IAMAW and Dep’t of State, Passport Svcs, Wash., DC 66 FLRA No. 26 (Sept. 20, 2011) – on negotiability appeal, holding that U proposals re office space were not “covered by” because matter was not “expressly contained in the CBA and, as to the second prong of “covered by,” no barg history or other evidence that matter was inseparably bound up with matters expressly covered in CBA. NTEU and Dep’t of the Treasury, IRS, Accts Mgmt and Compliance Servs, Wage and Investmts and Small Bus/Self Employed Div., 66 FLRA No. 35 (Sept 28, 2011) – similar analysis in review of arb award. NTEU and Dep’t of the Treasury, IRS, Accts Mgmt and Compliance Servs, Wage and Investmts and Small Bus/Self Employed Div., 66 FLRA No. 35 (Sept 28, 2011) – similar analysis in review of arb award. 14

15. BYPASS Dealing directly with BUEs on a matter involving conditions of employment for which agency has a duty to deal with the U as exclusive representative. U. S. DOJ, Bureau of Prisons, FCI, Bastrop, TX, 51 FLRA 1339 (1996). Includes encouraging employees to put pressure on U to take a certain course of action. USDA, Food Safety and Insp. Serv., 59 FLRA 68 (2003). Dealing directly with BUEs on a matter involving conditions of employment for which agency has a duty to deal with the U as exclusive representative. U. S. DOJ, Bureau of Prisons, FCI, Bastrop, TX, 51 FLRA 1339 (1996). Includes encouraging employees to put pressure on U to take a certain course of action. USDA, Food Safety and Insp. Serv., 59 FLRA 68 (2003). Communicating directly with employees re grievances, disciplinary actions and similar matters where agency is aware U represents the ee (Bastrop). This includes delivering a decision letter in a disciplinary matter to ee where A knows U represents the ee. McGuire AFB, 28 FLRA 1112 (1987) (known as a “McGuire bypass”). Communicating directly with employees re grievances, disciplinary actions and similar matters where agency is aware U represents the ee (Bastrop). This includes delivering a decision letter in a disciplinary matter to ee where A knows U represents the ee. McGuire AFB, 28 FLRA 1112 (1987) (known as a “McGuire bypass”). 15

16. BYPASS, CONT’D Most recent bypass decision – SSA, ODAR, Nat’l Hearing Ctr and Assoc. of ALJs, IFPTE, 66 FLRA No. 36 (Sept. 28, 2011) – Agency committed a ULP by sending unit employees a job solicitation for supervisory positions at a new National Hearing Center after agreeing to meet with union to meet to discuss the opening of the Center. Most recent bypass decision – SSA, ODAR, Nat’l Hearing Ctr and Assoc. of ALJs, IFPTE, 66 FLRA No. 36 (Sept. 28, 2011) – Agency committed a ULP by sending unit employees a job solicitation for supervisory positions at a new National Hearing Center after agreeing to meet with union to meet to discuss the opening of the Center. 16

17. WIND UP AND QUESTIONS Barbara Kraft Regional Director, Washington Regional Office Federal Labor Relations Authority 1400 K St., NW, Room 220 Washington, DC 20424 (202) 357-6029, ext. 6018 bkraft@flra.gov www.flra.gov 17